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The Solicitor-General (Ms Harriet Harman):
I will be asking the House to support Government amendment No. 33 and to resist amendments Nos. 8 and 9. Perhaps it will assist the House if I briefly explain what these clauses are designed to do. Their purpose is to establish a two-stage procedure to provide in statute for the replacement of the sample count procedure that was formerly used in cases where an alleged offence has been repeated many times against a series of victims. Because there is a limit to the number of counts that can be reasonably included in a single indictment, the practice used to be for a defendant to be indicted for a number of sample counts, and then, if he was convicted on the sample count, to be sentenced on the basis of all the offences. However, this practice was disapproved by the Court of Appeal in a case called Kidd in 1998, on the grounds that it involved sentencing an offender for offences to which he had not pleaded guilty, of which he
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had not been convicted, and which he had not agreed to be taken into consideration. So we had a long-standing sample count procedure, with which everyone will be familiar, and that was disallowed in 1998 in the Kidd case.
The court's decision in Kidd was no doubt correct, but the result is that in cases of multiple offences, it is no longer possible for the court to take account of more than a fraction of the defendant's offending when sentencing him, even if he is convicted of all the counts on the indictment. For example, where the offending consists of a scam in which hundreds of victims are cheated of small sums of money, the proceeds of the offences represented by the counts on the indictment could only amount to a tiny fraction of the total sum that was defrauded.
The result is a threefold problem. First, the sentence will not necessarily be able to reflect the totality of the offending. Secondly—this is important as well—most victims will be denied the satisfaction of knowing that the defendant has been dealt with for the offence committed against them. Thirdly, where there has been no conviction, the court has no power to award compensation, so that victims may miss out on compensation where their case was one of the offences that could not be accommodated on the indictment. So yes, there is the sentencing point, but there are two further points as well.
Even where the individual offences are more serious, such as indecent assaults, and the court is able to impose an adequate sentence simply on the basis of the limited counts on the indictment, it will still appear to the victim that the accused has been dealt with for only part of his offending. So convicting multiple offenders of all their offences is important. The objective of the present clauses is to provide the courts with a replacement for the sample count arrangements that would have been used before Kidd ruled them out.
Mr. Hogg: Will the Solicitor-General address in due course—not necessarily immediately—the point raised by my hon. Friend the Member for Beaconsfield (Mr. Grieve) about the mode of trial? Is he right to say that it is intended that the trial judge in the first trial, who has heard all the evidence and knows the facts of the conviction, should then be the presiding judge in the second trial, held without a jury, because in that case you will have a single judge, without a jury, who already knows of all the facts of the previous convictions?
The Solicitor-General:
Well, if that is the case—and it is most likely to be the case—that makes it more like the procedure that used to obtain before Kidd, with which the hon. Member for Beaconsfield (Mr. Grieve) is no doubt wholly familiar and to which he no doubt had no objections. The House needs to understand and accept that this is a tightening of safeguards compared with the pre-Kidd situation, not a loosening of them. The objective of the current clauses is to provide the courts with a replacement for the sample count arrangements that they would have used before Kidd ruled them out. We do not wish to go further than that, nor do we believe that we have done so.
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These clauses introduce a new procedure and provide safeguards. I want to take the House through those 10 safeguards.
First, when the new procedure is used, only when the defendant has been convicted by the jury of the sample counts can the judge proceed to consider whether the defendant is guilty of offences not before the jury. Therefore, if the defendant is acquitted: end of story. There is no opportunity in the procedure for the jury to acquit and for the judge then to come along and convict on the sample counts. That is an important first safeguard and the effect of clause 19(1).
Secondly, the judge must be satisfied that the counts that the jury would try can be regarded as a sample of the counts that would be tried by him in the second stage, which is the effect of clause 17(4). I guess that that is the nearest that we come to a definition, which is that the judge must be satisfied that those are indeed sample counts.
Mr. Grieve: Government amendment No. 33 appears to remove the requirement in subsection (9) that the judge should consider that the sample count is a sample of the other counts. Therefore, I hope that when the Solicitor-General comes to deal with that, she will explain where the requirement lies that the judge should consider it as a sample.
The Solicitor-General: The requirement lies in clause 17(4), which I have just dealt with.
The third safeguard is that the judge must be satisfied that it would be impractical for a jury to try all the counts. That is in clause 17(3). The first impulse must therefore be jury trial. But that is still not enough—there is a further safeguard, which is the fourth one.
Mr. Heath: I appreciate that there are six more safeguards to go, but I am going to take the Solicitor-General back one. I want to be absolutely clear on the point raised by the hon. Member for Beaconsfield (Mr. Grieve) about Government amendment No. 33 removing the condition in clause 17(9)(b) that the judge considers that the sample count is a sample of the other counts. What is the subtle distinction that I have missed between the judge considering that each count or group of counts
"can be regarded as a sample of counts",
"is a sample of the other counts",
under clause 17(9)(b), which is now to be removed?
The Solicitor-General: The point is that clause 17(9)(b) was simply repetitive and added nothing to clause 17(4), which is the second condition, as described in the Bill, which says that it must be regarded as a sample of counts.
The fourth safeguard is that the judge, having decided that the first impulse—jury trial of all the issues—would be impractical for some issues, would have to be satisfied that there are not other steps that could be taken to facilitate a trial by jury. That is the effect of clause 17(6).
The fifth safeguard is that the judge must be satisfied that it is in the interests of justice for the two-stage procedure to be used. That is under clause 17(5).
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The sixth safeguard is that the defendant tried by the judge on the sample and remaining counts must be the same person. That is the effect both of clause 17(9) and of our proposed amendment to it. We ask the House to reject amendment No. 8 and to support Government amendment No. 33.
Mr. Jonathan Sayeed (Mid-Bedfordshire) (Con): If, in the view of the defence, the judge has misdirected himself, what steps can the defence take to suggest that it should be a jury rather than a non-jury trial?
The Solicitor-General: That relates to the seventh and eighth safeguards if I remember the correct order. I shall come to them and the process by which challenges can be made.
I was dealing with the sixth safeguard, which is that it must be the same defendant on the sample of the remaining counts to be tried by the judge. That is the effect of clause 17(9) and our proposed amendment to it. Our amendment removes the circular definition that was criticised in Committee and simply provides that a sample count is not to be regarded as a sample of other counts unless the defendant in respect of each count is the same person.
Seventhly, there is also the safeguard laid out in rule 9 of the indictment rules, which will apply. All the offences must be founded on the same facts or form part of a series of offences of the same or similar character.
The next safeguard addresses the point raised by the hon. Member for Mid-Bedfordshire (Mr. Sayeed). The defence will have the opportunity to make representations against the use of the procedure if they want to challenge it. That is provided for in clause 18(4).
Mr. Grieve: I do not draw reassurance from the suggestion that rule 9 of the indictment rules is sufficient in such a case. Is it not a fact that if that were the only safeguard, it would be possible to have one of a series of counts of completely separate incidents of burglary that took place within a short time going to jury trial with the others determined afterwards? That is not what I originally understood the Home Secretary to say when he put forward the proposal for introducing the mechanism of clause 17 when he made his announcement at the end of proceedings on the Criminal Justice Act 2003.
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